The United States Department of Labor (www.dol.gov) published new guidance this month in Fact Sheet #73 available here.
The fact sheet sets forth 2 major requirements:
- Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” and
- Employers are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk”
The fact sheet also contains guidance on time and location of breaks, compensation, and clarifies which employers are subject to the requirements.
What does this mean to businesses subject to these requirements?
In general, employers will need to have a policy in place regarding break time to express breast milk and provide an area free from intrusion and the public (other than a bathroom) for employees to express breast milk. For many businesses, this may be a managers office, conference room or similar are that can be secured (i.e. locked) to prevent intrusion.
What about other state law requirements?
The fact sheet indicates that this release does not preempt state law that provides greater protection to employees
Posted in Business, Employment, Non-profit, Start-Ups.
Tagged with flsa, nursing.
By Ryan Rivchun
– July 29, 2010
The Securities and Exchange Commission (www.sec.gov) issued guidance on July 23, 2010 and updated the general questions and answers of general applicability section of their website to clarify their interpretation of the Dodd-Frank law. This is an update on my previous post. The applicable section is as follows:
Question 179.01
Question: Under Section 413(a) of the Dodd-Frank Act, the net worth standard for an accredited investor, as set forth in Securities Act Rules 215 and 501(a)(5), is adjusted to delete from the calculation of net worth the “value of the primary residence” of the investor. How should the “value of the primary residence” be determined for purposes of calculating an investor’s net worth?
Answer: Section 413(a) of the Dodd-Frank Act does not define the term “value,” nor does it address the treatment of mortgage and other indebtedness secured by the residence for purposes of the net worth calculation. As required by Section 413(a) of the Dodd-Frank Act, the Commission will issue amendments to its rules to conform them to the adjustment to the accredited investor net worth standard made by the Act. However, Section 413(a) provides that the adjustment is effective upon enactment of the Act. When determining net worth for purposes of Securities Act Rules 215 and 501(a)(5), the value of the person’s primary residence must be excluded. Pending implementation of the changes to the Commission’s rules required by the Act, the related amount of indebtedness secured by the primary residence up to its fair market value may also be excluded. Indebtedness secured by the residence in excess of the value of the home should be considered a liability and deducted from the investor’s net worth. [July 23, 2010] [Emphasis Added]
What does this mean if you are looking to raise capital?
Any mortgage indebtedness that exceed the value of an investors primary residence is a liability and should be deduced from the investor’s net worth calculation.
This is not a big surprise and confirmed the SEC’s initial position on the matter.
Thanks to Broc Romanek for posting about this here.
Posted in Business, Real Estate, Start-Ups.
Tagged with Accredited Investor, Reg D.
By Ryan Rivchun
– July 28, 2010
The Librarian of Congress released an important statement yesterday exempting addition conduct from the anti-circumvention restrictions under the DMCA. These exemptions are largely the result of the Electronic Frontier Foundation. The Librarian of Congress stated “Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.” The recommendation of the Register of Copyrights is available here and the text of the publication of the rule in the Federal Register is available here.
The 3 exemptions that will have the largest immediate impact are exemptions 1, 2 and 6. In general, the new exemptions are, : general”
- Exemption 1 deals with circumvention of short portions of movies for criticism or commentary for educational use, documentaries and noncommercial videos.
- Exemption 2 deals with circumvention to jailbreak iphones (or root Android phones) and to unlock phones to switch carriers.
- Exemption 6 deals with circumvention of ebooks to enable read aloud function or to render text in a specialized (magnified) format.
The exemptions do not authorize or permit the software that is used to circumvent the access controls. Apple’s webpage dealing with jailbreaking is available here and may void the warranty.The Cult of Mac posted Apple’s response here.
We will see how this impacts this emerging market.
Posted in Real Estate.
Tagged with copyright, DCMA.
By Ryan Rivchun
– July 27, 2010
Now that the Dodd-Frank Bill is in final form, businesses and investors need to be aware of the final language used in Section 413. The Dodd-Frank Bill require the Securities and Exchange Commission (www.sec.gov) to modify its regulations (Reg. D) to increase the standard for an accredited investor. Section 413 provides:
“(a)… The Commission shall adjust any net worth standard for an accredited investor, as set forth in the rules of the Commission under the Securities Act of 1933, so that the individual net worth of any natural person, or joint net worth with the spouse of that person, at the time of purchase, is more than $1,000,000 (as such amount is adjusted periodically by rule of the Commission), excluding the value of the primary residence of such natural person, except that during the 4-year period that begins on the date of enactment of this Act, any net worth standard shall be $1,000,000, excluding the value of the primary residence of such natural person.” [Emphasis added]
Now an accredited investor must have a net worth of $1,000,000.00 excluding his primary residence. The SEC is taking the position that this requirement is effective upon enactment. In addition, the SEC is also taking the position that the amount of any mortgage indebtedness secured by the personal needs to be reviewed in considering the investors net worth. If the indebtedness is less than the value of the property then the indebtedness does not need to reduce the investors net worth. If the indebtedness is more than the value of the personal residence, the indebtedness may need to be factored into the investors net worth.
What does this mean for start up business?
This will likely reduce the number of angel and other investors that are able to invest in start-up and small businesses. The pool of accredited investors will now be smaller.
What steps do I need to take if I am raising capital?
Companies seeking capital will need to review their suitability questionnaires in light of the new requirements.The investors will now need to give a representation regarding their net worth excluding their personal residence and may also need to to give a representation that any mortgage indebtedness does not exceed the value of their personal residence.
Thank you to Alan M. Parness (www.cadwalader.com) for writing about the SEC’s interpretation.
The image is used under the creative commons license from pbarnhart
Posted in Business, Real Estate, Start-Ups.
Tagged with accredited investors, dodd-frank, Reg D.
By Ryan Rivchun
– July 20, 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act was approved by the House on June 30 and was approved by the Senate today as reported by MSNBC.com. There are numerous summaries available and more to come on this landmark legislation.
Posted in Real Estate.
By Ryan Rivchun
– July 15, 2010
The United States Department of Labor (www.dol.gov) expanded definition of “son” or “daughter” for the purposes of leave under the Family Medical Leave Act (FMLA) in a recent interpretation letter available here. The DOL published this guidance to clarify how to apply the FMLA laws when there is no legal or biological parent-child relationship between an employee and such child.
What factors establish in loco parentis status?
Either “day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume responsibilities of a parent with regard to a child”. There are also various tests and court opinions that further clarify in loco parentis
What type of documentation or evidence is an employee required to provide to establish in loco parentis status?
A simple statement from an employee that an in loco parentis relationship exists my be sufficient. The DOL takes the position that “a simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”
Are they any limitations on the number of parents a child may have under FMLA?
There are no limitations on the number of parents a child may have under the FMLA. The DOL takes the position that “neither the statutes nor the regulations restrict the number of parents a child may have under the FMLA”
Does in loco parentis status apply to same-sex couples?
Same sex couples are able to attain in loco parentis status over child. The DOL believes that “an employee who will share equally in the raising of an adopted child with a same sex partner, but does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”
What does this mean for employers?
Employers may want to consider reviewing their FMLA leave policy to determine if it should be extended for birth, adoption or to care for a sick child if an employee establish they provide either day to day care for such child or are financially responsible for the child. This is also an opportunity for employers to decide how they want to treat same sex couples in the workplace.
Posted in Business, Employment.
Tagged with FMLA.
By Ryan Rivchun
– July 8, 2010
Due to the down economy, many students and unemployed workers are looking for unpaid internships as a way to get their foot in the door. The New York Times has reported that state and federal regulators are concerned that employees are improperly using unpaid interns for free labor.
The United States Department of Labor (DOL) has recently issued a fact sheet to provide guidance internships under the Fair Labor Standards Act (FLSA) and its regulations available here. The DOL’s fact sheet uses a 6 part test to determine if an intern can participate in an unpaid internship program. The Supreme Court has ruled an than an intern who works only to serve their own interests (gaining knowledge) is not necessarily an employee (or technically suffered or permitted to work) of another person who provides aid or instruction.
To make the determination, the DOL considers the following six criteria:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to the wages for the time spent in the internship.
If all the above factors are satisfied, an employment relationship most likely will not exist and the minimum wage and overtime provisions do not apply to the intern. If the factors are not satisfied, the intern must be paid at least minimum wage (and overtime as applicable).
Points 2, 3 and 4 will likely be the most difficult requirements that a for profit employer will need to satisfy in order to use unpaid interns. The points collectively require that an employer is really giving the unpaid intern training, which uses the employer’s resources, and is not using the unpaid intern to perform work usable by the employer. If you are going to use the interns work product or are going to derive a benefit from their activities, employers should consider paying the intern at least minimum wage plus overtime to minimize their risk.
The image is used under the Creative Commons license from http://www.flickr.com/photos/banky177/
Posted in Business, Employment, Start-Ups.
Tagged with summer interns, unpaid interns.
By Ryan Rivchun
– June 15, 2010
The Ohio Supreme Court issued an important opinion on May 25, 2010 in the Erwin v. Bryan case.
This case based upon a wrongful death claim filed by Cora Erwin relating to the death of her husband after he was released from the hospital on July 15, 2004. Cora Erwin filed a lawsuit on July 10, 2006, right before the expiration of the 2 year statute of limitations, naming Dr. Bryan, Union Hospital and five “john doe” defendants. After Dr. Bryan’s deposition on in June of 2007, Mrs. Erwin sought to amend her complaint to add Dr. Swoger as one of the “john doe” defendants. Dr. Swoger filed a motion for summary judgment to dismiss him as a defendant because he was not identified until after the statute of limitations expired.
The Ohio Supreme Court ruled:
- Pursuant to Civil Rule 15(d), a complaint against a party whose name is unknown must describe the defendant and a summons containing the words “name unknown” must be personally served on the defendant.
- Civil Rule 15(d) does not authorize a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name and personally serve those defendants after the limitations period has elapsed.
The basic point is that plaintiffs may use a placeholder if they know who the defendant is but are not able to identify them prior to the expiration of the statute of limitations. However, plaintiffs are no longer going to be successful inserting place holder “john doe” defendants in hopes of identifying someone after the statute of limitations has run.
Defendants needs to be aware of this opinion if they were added as party to a lawsuit, based upon initially being named as a “john doe” defendant, after the expiration of the statute of limitations.
This is an interesting opinion and we will see how it works out in the trial and appellate courts.
Posted in Business, Consumer products.
Tagged with litigation, Rule 15.
By Ryan Rivchun
– June 1, 2010
Future CMBS deals will likely contain detailed information about each property secured by a mortgaged based upon the Security and Exchange Commission’s recently release 33-9117.
The SEC has indicated that their goal is more transparency so that investors in the CMBS products can more accurately evaluate the risk of investing in the pool. From a Wall Street investing prospective, this may not be a bad idea and investors will now understand the actual leases that support their their service payments.
From a property owner and tenant prospective, this creates a real issue over the privacy of their business dealings. Savvy tenants, landlords and brokerage companies will be able to comb through CMBS loan pool data and create a database of the rents being paid by tenants for properties across the country. Landlords need to keep this in mind if they choose to go the CMBS market for financing In doing so, they may be telling competing landlords when their leases expire and what rent they were charging.
We will see how this unfolds.
Posted in Real Estate.
Tagged with cmbs.
By Ryan Rivchun
– May 17, 2010
The IRS has made numerous announcements reminding small non-profits with revenue under $25,000 that they must annually file the Form 990 or the other applicable return forms such as the 990-N (also known as the e-postcard) or the 990-EZ1. The Form 990-N can be filed electronically.
Any organization that has failed to meet its reporting obligations for the last 3 years will automatically have their Federal tax exemption revoked. Hopefully non-profits have remembered to make their filings or will do so before the end of the day today.
Posted in Real Estate.
Tagged with Non-profit.
By Ryan Rivchun
– May 17, 2010
Social Homes